America’s mass incarceration is the bastard child of many. Among them: racism, the War on Drugs (itself a racist business), the evisceration of the Constitution through ideological interpretive strategies, prosecutorial misconduct, police brutality, and so on. Yet other culprits may be found elsewhere, in other precincts of the legal and political infrastructure of the nation.
In ‘The Balance of Power Between The Federal Government and the States’ (in: Alan Brinkley, Nelson W. Polsby, Kathleen M. Sullivan eds., New Federalist Papers: Essays in Defense of the Constitution, , WW. Norton, New York, 1997), Kathleen M. Sullivan writes:
[T]here may be reason for the courts to draw outer limits to federal power when the structural, political, and cultural safeguards of federalism break down and the federal government encroaches needlessly upon areas traditionally and sensibly regulated by the states. The worst example in our recent politics is the overfederalization of…
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A Philosopher's Take 
Walto (@WalterHorn)
May 16, 2016
It’s a little hard to believe that over-incarceration in the U.S. has much to do with Federalization of crimes. My past half-dozen jury notices haven’t come from Federal Courts anyhow. And states, too, have passed their own minimum sentence laws.
Is there empirical evidence on this you or the author of that blog would care to share that indicates that it is actually Federal criminals that are stuffing our prisons? Thanks.
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Justin Caouette
May 18, 2016
Hi Walter,
Samir offered me this response:
“this link provides some figures – this does not suggest that Federal criminals are a majority of prisoners, but that their number is increasing: https://www.fas.org/sgp/crs/misc/R42937.pdf.
The first section of this is also useful: http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/20111031-rtc-pdf/Chapter_04.pdf.
Even if ‘Federal criminals’ are not ‘stuffing our prisons,’ they are adding significantly to their populations.”
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Walto (@WalterHorn)
May 20, 2016
Thanks, that info shows that you’re right that the number of Federal prisoners is growing, and likely for the reasons you have mentioned. But it also shows that Federal inmates remain a tiny minority of the U.S. prison population.
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